concurring and dissenting.
With one exception, I join the majority opinion. The exception is that I believe that the Legislature did not intend that public entities should be subject to payment of punitive damages under the Conscientious Employee Protection Act (CEPA). Substantially for the reasons stated by Judge Petrella in his dissent in the Appellate Division, I dissent from that part of the majority opinion holding that plaintiff, Joseph P. Abbamont, Jr., may maintain a claim for punitive damages against the Piscataway Township Board of Education.
Ultimately, the cost of any punitive-damage award will be borne by the taxpayers of Piscataway Township. In an era of decreasing legislative support for taxes, see L. 1994, c. 2, § 1 (amending N.J.S.A 54A:2-1) (decreasing rate of taxation under gross-income tax), and punitive damages, see N.J.S.A. 34:11B-11 (capping punitive damages for violations of Family Leave Act at $10,000 for individual suits or lesser of $500,000 or one percent of defendant’s net worth for class actions or director’s complaints); N.J.S.A. 2A:58C-5 (allowing punitive damages in products liability actions only if claimant proves “actual malice” or “wanton and willful disregard of the safety of product users, consumers, or others who foreseeably might be harmed by the product”), I doubt that the Legislature, when enacting CEPA, thought that it was overcoming the ban of the Tort Claims Act (TCA), N.J.S.A 59:9 — 2(c), on awarding punitive damages against public entities. That statute provides: “No punitive or exemplary damages shall be awarded against a public entity.” Ibid.
The problem, as the majority opinion recognizes, ante at 425-430, 650 A2d at 968-970, is in reconciling the language of N.J.SA *43659:9-2(c) with that of N.J.S.A. 34:19-5, which states that “[a]ll remedies available in common law tort actions shall be available to prevailing plaintiffs” under CEPA. Broadly read, the language of N.J.S.A. 34:19-5 could encompass an award of punitive damages against a public employer. Absent from the statute, however, is any express authorization of the award of punitive damages against public employers.
As the majority candidly acknowledges, moreover, CEPA’s sparse history does not support either “a specific intent to incorporate the exemption from punitive damages of TCA,” ante at 428, 650 A 2d at 969, or one “to include punitive damages against public entities,” ibid. In the face of such enigmatic legislative history and language, the Legislature has left ample room for reasonable judges to disagree. I believe that not permitting punitive-damage awards against public employers is more consistent with the legislative intent. The best solution would be for the Legislature to revisit the issue and resolve it definitively.
Justices CLIFFORD and GARIBALDI join in this concurrence/dissent.
For affirmance — Justices CLIFFORD, HANDLER, POLLOCK, O’HERN, GARIBALDI and STEIN — 6.
For reversal on part III — Justices CLIFFORD, POLLOCK and GARIBALDI — 3.